CMS Proposes Rule Establishing New Nursing Home Accountability and Staffing Standards

As part of the Biden Administration’s initiative to improve quality and safety in nursing home care, the Centers for Medicare & Medicaid Services (CMS) issued a notice of proposed rulemaking on September 1, 2023, entitled “Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting.” This initiative resulted in part from a 2022 Nursing Home Staffing Study, which sought to establish “the level and type of staffing needed to promote acceptable quality and safety.” Notably, the study projected that the cost of implementing such new minimum staffing requirements could range from $1.5-6.8 billion, increasing the burden on an industry already struggling with personnel shortages and demanding regulatory requirements.

The proposed rule is comprised of three core staffing proposals, including establishing new minimum staffing standards for RNs and NAs, requiring an RN to always be onsite, and enhancing facility assessment requirements. There are staggered implementation protocols and possible hardship exemptions for qualifying facilities included in the proposed rule. CMS also announced a collaboration with the Health Resources and Services Administration (HRSA) to assist in training and growing the nursing workforce, by investing over $75 million in scholarships and tuition reimbursement.

The first core staffing proposal establishes a minimum staffing standard of 0.55 hours per resident day (HPRD) for RNs and 2.45 HPRD for NAs. Practically speaking, this translates to a facility with 100 residents having two RNs for each 8-hour shift and a third RN for one shift during the day, as well as ten NAs per 8-hour shift. As these are minimums, CMS noted that they expect facilities to increase staffing above this baseline pursuant to the individual facility assessment and acuity levels.

The second proposal seeks to address the increasing complexity and acuity of medical conditions seen in nursing home residents by having an RN onsite, 24 hours a day, 7 days a week. CMS asserts that having an RN onsite at all times will “significantly reduce the risk of unsafe and low-quality care across LTC facilities.” Under the 24/7 and the minimum staffing standard proposals, it is estimated that 36% of nursing homes would have to hire additional RNs and 68% would have to hire additional NAs to meet the requirements.

The third proposal aims to strengthen the facility assessment requirements by implementing the following new updates:

• Clarifying that facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs;
• Requiring that facilities use the facility assessment to assess the specific needs of each resident in the facility and to adjust as necessary based on any significant changes in the resident population;
• Requiring that facilities include the input of facility staff, including, but not limited to nursing home leadership, management, direct care staff (i.e., nurse staff), representatives of direct care staff, and staff who provide other services; and
• Requiring facilities to develop a staffing plan to maximize recruitment and retention of staff consistent with what was described in the President’s April Executive Order on Increasing Access to Higher Quality Care and Supporting Caregivers.

While the goals of CMS and the Biden Administration of increasing safety and quality of nursing home care are undoubtedly noble, many in the health care industry have concerns that the proposed rule will cause untoward effects on an already over-burdened system. The President and CEO of the American Health Care Association, Mark Parkinson, stated that the proposal is “unfounded, unfunded, and unrealistic” in that it “requires nursing homes to hire tens of thousands of nurses that are simply not there.”

CMS is seeking comments on feasibility of the proposals, further policy options, and alternative staffing standards, with a public comment deadline of November 6, 2023.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to Medicare audits or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.